Riemers v. Peters-Riemers

• Citation: 684 N.W.2d 619,2004 ND 153
• Decision Date: 23 July 2004
• Docket Number: No. 20030353.,20030353.
• Parties: Roland C. RIEMERS, Plaintiff and Appellant, v. Jenese PETERS-RIEMERS, Michael L. Gjesdahl, and Gjesdahl & Dietz, PLLP, Defendants and Appellees.
• Court: United States State Supreme Court of North Dakota

684 N.W.2d 619

2004 ND 153

Roland C. RIEMERS, Plaintiff and Appellant, v. Jenese PETERS-RIEMERS, Michael L. Gjesdahl, and Gjesdahl & Dietz, PLLP, Defendants and Appellees.

No. 20030353.

Supreme Court of North Dakota.

July 23, 2004.

Roland C. Riemers, pro se, Grand Forks, N.D., plaintiff and appellant.

Michael L. Gjesdahl, Gjesdahl & Associates, Fargo, N.D., for defendants and appellees.

MARING, Justice.

[¶ 1] Roland Riemers appeals the dismissal with prejudice of his civil action¹ against Jenese Peters-Riemers (n/k/a Peters-Harris), his former wife, her attorney, Michael Gjesdahl, and his law firm. We affirm.

[¶ 2] This appeal is one of many Riemers has filed related to his divorce from Peters-Riemers. See Flattum-Riemers v. Peters-Riemers, 2001 ND 121, 630 N.W.2d 71

(affirming the dismissal of Riemers' application for a domestic violence restraining order); Peters-Riemers v. Riemers, 2001 ND 62, 624 N.W.2d 83 (affirming a domestic violence restraining order against Riemers); Peters-Riemers v. Riemers, 2002 ND 49, 641 N.W.2d 83 (affirming Riemers' eviction from the former marital residence); Peters-Riemers v. Riemers, 2002 ND 72, 644 N.W.2d 197,

cert. denied, 537 U.S. 1195, 123 S.Ct. 1252, 154 L.Ed.2d 1031 (2003) (affirming Riemers and Peters-Riemers' divorce judgment); Peters-Riemers v. Riemers, 2003 ND 96, 663 N.W.2d 657 (reversing a contempt order for failure to comply with property distribution in Riemers and Peters-Riemers' divorce judgment and reversing a money judgment); Peters-Riemers v. Riemers, 2004 ND 28, 674 N.W.2d 287 (reversing a contempt order for failure to pay child and spousal support and reversing a money judgment for the arrears); Riemers v. O'Halloran, 2004 ND 79, 678 N.W.2d 547 (affirming an order dismissing his action against the forensic accounting firm that testified at Riemers and Peters-Riemers' divorce proceedings); Riemers v. Anderson, 2004 ND 109, 680 N.W.2d 280 (affirming an order denying Riemers' motions for default judgment and summary judgment and dismissing his complaints, with prejudice, against persons involved in arresting and prosecuting him for assault of Peters-Riemers).

[¶ 3] Riemers commenced an action against Peters-Riemers, Gjesdahl, and Gjesdahl's law firm to recover damages for alleged torts occurring during his marriage and during his divorce proceedings which he alleged caused him injuries. He requested more than 200 million dollars in damages. The trial court summarized Riemers' claims as follows:

1.) [Riemers] alleges that his former wife, [Peters-Riemers], committed various torts against [Riemers] since 1997 including physical and emotional abuse (par. 3 of Complaint), intentional infliction of emotional distress by depriving [Riemers] of a relationship with his son Jonathan through attempts to alienate Jonathan from [Riemers] and depriving him of visitation with Jonathan (paragraph 3 of Complaint);

2.) [Riemers] alleges that [Peters-Riemers], Gjesdahl and Gjesdahl's law firm, under the doctrine of respondeat superior, knowingly, falsely and deliberately, conspired to give false testimony in the parties' divorce proceedings including a dishonest listing of debts and values to the court and a false portrayal of [Riemers] as [a] pornography addict who has committed adultery during his marriage all with the intent to inflame the court against [Riemers], thus preventing [Riemers] from having a fair hearing, and for the financial and legal gain of [Peters-Riemers], Gjesdahl, and the law firm (paragraphs 3, 5 and 8 of Complaint) and abused the judicial process for financial and legal gain of [Peters-Riemers], Gjesdahl, and the law firm (paragraphs 3, 5 and 8 of Complaint);

3.) [Riemers] alleges that Gjesdahl and the law firm deliberately delayed settlement of issues between [Riemers] and [Peters-Riemers] (paragraph 6 of Complaint) and that Gjesdahl and the law firm are guilty of knowing deceit and collusion or consented to deceit and collusion with the intent to deceive or commit fraud on [the] court and others in violation of N.D.C.C. § 27-13-08.

[¶ 4] The trial court granted summary judgment to Peters-Riemers, Gjesdahl, and Gjesdahl's law firm and dismissed Riemers' action with prejudice. The trial court concluded that: 1.) Riemers' claims against Peters-Riemers are barred by collateral estoppel and res judicata, and any claims Riemers has regarding visitation are under the continuing and exclusive jurisdiction of the trial court for the divorce proceedings; 2.) Riemers' claims against Peters-Riemers, Gjesdahl, and Gjesdahl's law firm for conspiracy to give false testimony and abuse of process were not supported by facts sufficient to survive summary judgment; any allegation regarding perjured testimony at the divorce proceedings may not be collaterally attacked by Riemers; no civil action for damages will lie for perjury; Riemers failed to establish competent admissible facts to prove a civil action for conspiracy to commit perjury; Riemers' claim of abuse of process is barred by collateral estoppel and res judicata because the contempt order for which he was jailed was already fully litigated and appealed; his argument regarding abuse of process was not supported by sufficient facts in his affidavits; and 3.) Riemers' claims against Gjesdahl and his law firm are conclusory and unsupported factually; Riemers' affidavits in response to the defendants' motion are conclusory and contain no facts supporting his claims of deceit and collusion; Gjesdahl lied to the court and the United States Immigration Service; he allowed or encouraged Peters-Riemers to lie in the divorce proceedings; and he abused the judicial process.

[¶ 5] The trial court denied Riemers' request for a 30-day continuance to amend his complaint and a 90-day continuance to conduct further discovery, concluding that Riemers had sufficient time to present his evidence pertinent to the motion for summary judgment.

[¶ 6] Riemers now appeals the order dismissing his action with prejudice against Peters-Riemers, Gjesdahl, and Gjesdahl's law firm.

I

[¶ 7] Our standard of review for granting a summary judgment is as follows:

Summary judgment is a procedural device for promptly disposing of a lawsuit without a trial if there are no genuine issues of material fact or inferences which can reasonably be drawn from undisputed facts, or if the only issues to be resolved are questions of law. Whether summary judgment was properly granted is a question of law which we review de novo on the entire record. On appeal, this Court decides if the information available to the trial court precluded the existence of a genuine issue of material fact and entitled the moving party to summary judgment as a matter of law. Summary judgment is appropriate against parties who fail to establish the existence of a factual dispute on an essential element of a claim on which they will bear the burden of proof at trial.

A party resisting a motion for summary judgment may not simply rely upon the pleadings or upon unsupported, conclusory allegations. Factual assertions in a brief do not raise an issue of material fact satisfying Rule 56(e). Nor may a party merely reassert the allegations in his pleadings in order to defeat a summary judgment motion.

Zuger v. State, 2004 ND 16, ¶¶ 7, 8, 673 N.W.2d 615 (citations and quotations omitted).

II Riemers' Claims Against Peters-Riemers

A. Emotional and Physical Abuse

[¶ 8] Riemers argues his claims against Peters-Riemers for emotional and physical abuse are not barred by res judicata or collateral estoppel. He contends these issues against Peters-Riemers were not addressed because Judge Backes "flipped through" the pleadings and failed to properly review them. He also argues he did not admit to assaulting Peters-Riemers when he pled guilty to the criminal charge, but submitted an Alford plea. We disagree.

[¶ 9] Courts bar relitigation of claims and issues to promote the finality of judgments, which increases certainty, discourages multiple litigation, wards off wasteful delay and expense, and conserves judicial resources. Riemers, 2004 ND 109, ¶ 12, 680 N.W.2d 280 (quoting Ohio Cas. Ins. Co. v. Clark, 1998 ND 153, ¶ 23, 583 N.W.2d 377). "[C]ollateral estoppel, or issue preclusion, generally forecloses the relitigation in a second action based on a different claim, of particular issues of either fact or law which were, or by logical and necessary implication must have been, litigated and determined in the prior suit." Riemers, 2004 ND 109, ¶ 12, 680 N.W.2d 280 (quoting Reed v. University of N.D., 1999 ND 25, ¶ 9, 589 N.W.2d 880 (quotation omitted)). An issue must satisfy four tests before collateral estoppel will bar relitigation of that issue in a new proceeding: "(1) Was the issue decided in the prior adjudication identical to the one presented in the action in question?; (2) Was there a final judgment on the merits?; (3) Was the party against whom the plea is asserted a party or in privity with a party to the prior adjudication?; and (4) Was the party against whom the plea is asserted given a fair opportunity to be heard on the issue?" Hofsommer v. Hofsommer Excavating, Inc., 488 N.W.2d 380, 384 (N.D.1992).

[¶ 10] In Riemers and Peters-Riemers' divorce proceedings, Riemers alleged that Peters-Riemers had committed domestic violence against him and that his actions were in self-defense. In the trial court's Findings of Fact and Conclusions of Law, dated May 4, 2001, it specifically found:

10. In the fall of 1996, [Peters-Riemers] became pregnant with the parties' son. A few months later, in February of 1997, [Peters-Riemers] learned of [Riemers'] physical relationship with [another woman]. A physical argument erupted. During the course of such incident, [Riemers] slapped and punched [Peters-Riemers]. He also kicked her in the stomach. Consequently, [Peters-Riemers] suffered vaginal bleeding and obtained medical treatment.

....

15. In October of 1999, [Peters-Riemers]

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